Malpractice: Laser Surgery Lawsuits Surge

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Lawsuits relating to injury from laser surgery are on the rise, and physicians have been held liable even if they were not personally operating the device, a retrospective study found.

Over a 25-year period, 174 cases of cutaneous injury were reported following procedures such as hair removal and facial rejuvenation, according to H. Ray Jalian, MD, of Harvard Medical School, and colleagues.

And although in only 100 of the cases the physician actually performed the procedure, in 146 the physician was listed as a defendant, the researchers reported in the February JAMA Dermatology.

"These data clearly suggest that the onus of liability is placed squarely on physicians," Jalian and colleagues cautioned.

Action Points

Lawsuits relating to injury from laser surgery are on the rise, and physicians have been held liable even if they were not personally operating the device, a study found.

Note that there are no federal requirements as to who can use lasers for cutaneous purposes or what type of training or supervision is needed.

There are no federal requirements as to who can use lasers for cutaneous purposes or what type of training or supervision is needed. Because regulations on cutaneous laser use are left to the states, and considerable uncertainty exists, the researchers aimed to provide an overview of current trends in malpractice litigation.

"An action for medical malpractice is based on the negligent infliction of personal injury or wrongful death in the course of medical treatment by a provider who professed to have a special knowledge and skill in the practice of medicine," they explained.

And negligence is basically "the failure to act as a reasonably prudent individual would act under like circumstances."

To explore the types of injuries, procedures involved, and implicated practitioners, the researchers searched a large legal database for cases and verdicts between 1985 and 2012, finding a gradual increase over time and a peak incidence in 2010.

States with the largest number of cases were California, with 27, and New York and Texas, each with 23.

Plastic surgeons were most commonly involved, representing 26% of cases, followed by dermatologists, with 21%.

However, cases also were seen with clinicians from many other specialties ranging from obstetrics and gynecology to radiology, and nonphysicians such as nurses and aestheticians were the laser operators in almost 40% of instances.

Hair removal was the most common procedure leading to injury and legal action, being implicated in 36% of cases.

It's also the most common laser procedure overall, with a total of 900,000 procedures performed nationwide in 2011 alone. In some states -- including Texas and New York -- no requirement for operator licensing for this procedure exists.

Other procedures frequently involved included various types of skin rejuvenation (25%) and treatment of vascular lesions and leg veins (8% each).

But the type of rejuvenation specified in many of the cases, carbon dioxide resurfacing, is rarely done today because of the high frequency of scarring, and problems occurring during treatment of leg veins may relate to the high likelihood of complications.

The specific injuries were burns in 47% of cases, scars in 39%, and changes in pigment in 24%.

There also often were complaints of emotional distress and lower quality of life.

One patient died under general anesthesia for carbon dioxide resurfacing and a second after excessive topical anesthesia was used during hair removal.

Information on the final disposition was available for 120 of the cases, with 32 being in favor of the plaintiff and 29 being settled out of court. In the remaining 59 cases, the ruling favored the defendant.

Damages to plaintiffs ranged from $5,000 to more than $2 million, with a mean award of $380,700.

Negligence was not the only accusation, the researchers noted. Additional allegations against physicians included failures in training and supervision of staff, inadequate provision of informed consent -- when patients claim to have not been fully apprised of potential hazards -- and use of an inappropriate device.

In the cases where the physician was alleged to be liable while not actually performing the procedure, the underlying legal concept is referred to as respondeat superior, according to the researchers.

"It is important to note that plaintiffs' attorneys typically sue parties who can satisfy a successful judgment, that is, insured defendants," they observed, noting that many nonphysician laser surgery providers are uninsured and would be unable to pay.

They therefore advised physicians performing these procedures to familiarize themselves with their state regulations and ensure that all staff have the requisite training and licensing.

In addition, clinicians who do laser procedures but have not been extensively trained in this field should realize that they can be held to the same standards as those who are specialists.

"Thus, to minimize their liability, physicians performing these treatments should err on the side of caution and seek out the requisite training and/or licensing," concluded Jalian and colleagues.

One co-author serves and a consutant for Zeltiq Aesthetics and Unilever, and is on the medical advisory board of Zeltiq Aesthetics.

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